Sexual Gestures and Signals
New York City Attorneys Advocating for Employees
Sexual harassment can be emotionally and economically devastating. However, it does not always involve unwelcome touching. It can also involve sexual gestures and signals. Leering and obscene gestures, for example, may be actionable as workplace harassment. At Phillips & Associates, our seasoned New York City sexual harassment lawyers may be able to represent you in a lawsuit for damages.
Sexual Gestures and Signals
Sexual gestures and signals often involve pantomiming sex. They may involve obscene hand motions that simulate sex. They can include movements of the tongue, lips, or mouth, or they may involve suggestive facial expressions, leering, or staring. They might involve using the middle finger as a threat or simulated grabbing or touching. In some cases, sexual gestures and signals are part of a pattern of discriminatory conduct, while in other cases they are performed just once. Sexual harassment consisting of sexual gestures and signals in the workplace is prohibited under local, state, and federal laws.
The New York City Human Rights Law
The New York City Human Rights Law was designed to be more protective than state or federal law and is meant to be construed liberally to accomplish its broad and remedial purposes. Generally, courts are supposed to construe its provisions in favor of discrimination plaintiffs when that construction is reasonably possible. Sexual gestures and signals can constitute sexual harassment that is prohibited under the New York City Human Rights Law.
To show liability under the city law, you will not need to prove that the harassing sexual gestures were severe or pervasive, as you would under federal law. Instead, you will need to show that the sexual gestures and signals were more than what a reasonable victim of discrimination would believe constituted petty slights and trivial inconveniences. If your coworker made a kissing face once, this might be considered a petty slight, depending on the surrounding circumstances. However, if your coworker repeatedly slapped his backside and made a lewd gesture with his finger and tongue, it is likely that the court would find that this conduct is more than what a reasonable person would consider a petty slight.
The primary question in a harassment claim is whether you were treated less well than other employees due to your membership in a protected class, given the totality of the circumstances and the overall context of the gestures and signals in question. You would need to show that you suffered from a hostile work environment because of your sex or gender. If there is conflicting testimony about the sexual gestures or signals, the jury should determine what is credible.
After encountering a sexual gesture or signal in a New York City workplace, you should let the perpetrator know that the conduct was unwelcome and notify HR in writing, or follow other grievance procedures set forth in your employment manual. You should keep a written, contemporaneous record of sexual gestures or signals made at your workplace, when they occurred, and what the surrounding circumstances were.
Federal and State Laws
Title VII of the Civil Rights Act is the primary federal law prohibiting sexual harassment and certain other types of workplace discrimination. It is enforced by the Equal Employment Opportunity Commission (EEOC). It applies to employers that have a minimum of 15 employees. The New York State Human Rights Law also prohibits sexual harassment, and unlike Title VII, it applies to all employers in New York, regardless of size. To prevail under federal law, your attorney would need to show that the sexual gestures and signals were either so severe or so pervasive that they made the work environment hostile or abusive. For example, if your supervisor pantomimed sex and made sexual sounds every day for a week, we would probably be able to show that the harassing conduct was pervasive. State law involves a similar standard to city law.
Consult an Experienced New York City Attorney
If you have encountered sexual gestures and signals at your job, you should call Phillips & Associates. Our employment lawyers represent workers who have been sexually harassed in Brooklyn, Manhattan, Queens, the Bronx, and Staten Island, as well as Long Island, Westchester County, New Jersey, and Pennsylvania. Call us at (866) 229-9441 or complete our online form.
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